Tuesday, April 24, 2012

The Atlanta Journal Constitutionreports that police have arrested Robert and Brandon Canoles and charged them with aggravated assault, false imprisonment, and trespass. Last week, the Canoleses held Jean-Joseph and Angelica Kalonji -- their new neighbors -- at gunpoint, mistakenly believing that they were burglarizing a home they had just purchased.

According to Jean-Joseph, Robert Canoles threatened to shoot him if he continued to speak. Jean-Joseph says that he was merely trying to explain that he and his wife owned the property.

Robert Canoles called the Newton County Sheriffs Department, but when officers arrived, they arrested the Kalonjis for loitering and prowling. Jean-Joseph Kalonji says he told officers to confirm the home purchase with his son, but the police refused to do so. Robert Canoles said that officers complemented him and told him that he did the right thing.

Robert CanolesAtlanta Journal Constitution

Brandon Canoles Atlanta Journal Constitution

Once the police finally discovered their mistake, they released the Kalonjis. Yesterday, as news of a potential arrest emerged, Robert Canoles defended himself and his son, claiming that he had a Second Amendment right to detain the Kalonjis.

Although it is unclear whether race motivated the Canoleses, it is also difficult to ignore the fact that the Kalonjis are an interracial immigrant couple, and the Canoleses are white rural southerners who have invoked the Constitution as a justification for violent behavior. Robert Canoles said that in his part of the country, "people defend their own." Regardless of race, this behavior is abhorrent. It is also not protected by the Constitution.

UPDATE: The Newton County Sheriffs Department should also investigate the conduct of the arresting officer. Not only did the officer arrest an innocent couple, if Robert Canoles is telling the truth, he or she also complimented two persons who clearly commented a very dangerous crime!

Monday, April 23, 2012

Only a few news outlets have reported a terrifying story that occurred last week in the tiny rural town of Porterdale, Georgia. Jean-Joseph (61-years-old) and Angelica Kalonji (57-years-old) purchased a home and, acting on the advice of their real estate agent, went to change the locks. The property had been foreclosed and sat empty for seven months.

Unfortunately, the Kalonjis' joy suddenly turned to a nightmare. Robert Canoles and his son -- who live next door to the home the Kalonjis purchased -- suddenly surrounded the Kalonjis with loaded semi-automatic rifles. The Canoles forced the Kalonjis to stand with their hands against the wall of their own home.

Robert Canoles claims that he thought the couple was attempting to burglarize the property. When the Kalonjis tried to explain that they purchased the home, however, their neighbors refused to listen. According to Jean-Joseph Kalonji, Robert Canoles even threatened to shoot them if they did not "shut up."

Robert Canoles called the local police, and once they arrived, the officers arrested the Kalonjis. Some articles have mentioned that the Kalonjis did not have their closing documents, but possession of these documents is not required for persons to enter their homes. The Kalonjis said that they asked the officers to call their son to verify their ownership of the home, but they refused to do so.

Kalonjis Released; Police Might Arrest the Canoles
The police later released the Kalonjis and dropped all charges against them. Now, the police say that they might arrest Robert Canoles and his son. The elder Canoles has an interesting defense to any prospective criminal charges: the Second Amendment. Sounding like a foot soldier in the Tea Party, Canoles says that he does not regret his decision to hold the Kalonjis hostage:

I don't know what they can charge me with. . . . This is my Second Amendment right. Look, this is the county out here, and we protect our own.

The Second Amendment is not a defense to assault with a deadly weapon, false imprisonment and other crimes implicated by this incident. It is shameful that Robert Canoles would invoke the Constitution to defend his use of an automatic rifle to threaten and falsely imprison an innocent couple. The Constitution is not an instrument of vigilante justice.

Was Race A Factor In This Incident?
Jean-Joseph is from the Congo, and his wife is from Romania. According to a source at the Atlanta Journal Constitution, the Canoles are white -- although this information has not been mentioned in reporting on the subject.

Given the location of the incident (an almost all-white town in the rural South), the interracial relationship of the Kalonjis, and the history and ongoing significance of race in the United States, it is not unreasonable to believe that race might have influenced Robert Canoles, his son, and the police.

Would the cops have arrested a white couple who were simply trying to change the locks to their new home? Would white neighbors pull automatic weapons on a white couple, mistaking them for burglars, rather than homeowners?

It is difficult to answer these questions with certainty, but given the sociology of race in the United States, it is really hard to dismiss the operation of race in this incident. As Robert Canoles said, in his town, "we protect our own." By his own words, Canoles could not believe that the Kalonjis belong in Porterdale. Why?

UPDATE: Police have charged Robert Canoles and his son with aggravated assault, false imprisonment and trespass (just as I anticipated).Robert's statements are pretty damning.

Bill Lee, the Sanford, Florida Chief of Police, has submitted an offer of resignation. Lee faced tough questions after he refused to charge George Zimmerman for killing Trayvon Martin. Lee temporarily stepped down from his position after protests started and the Florida State Police took over the investigation. Also, the City Commissioners previously issued a no-confidence vote.

Lee's resignation requires a vote of the City Commissioners. The offer of resignation could include some discussion of retirement, benefits, severance or even clearance of wrongdoing (though that seems premature), which would normally require authorization from the city.

During his bail hearing, George Zimmerman offered an unwanted apology to Trayvon Martin's parents. Mark O'Mara, Zimmerman's attorney, offered a convoluted explanation for his client's unwanted apology during an appearance on CBS This Morning.

Prior to the bail hearing, Martin's parents had already rejected Zimmerman's offer to apologize. The timing of the offer -- almost two months after Martin's death -- clearly indicates that Zimmerman's efforts were self-serving and insincere. When asked to explain the timing of the apology, O'Mara comes across as disingenuous as well:

My concern is, I didn't realize that the way [Martin's family] had responded to me was through a press conference where they said it was too late or not an appropriate time. . . .

To be honest, had I known that - maybe had I seen the press conference - I'm not sure that we would have done it at the bond hearing, because the purpose of it truly was to get to the family and to respond directly to the family's request. Had I known or been told that that wasn't the time, it wouldn't have happened. So, I apologize for that.

But certainly it wasn't necessary to get a bond. It is not usual that you have somebody get up at all in a bond hearing. We wouldn't have done it in this case.

Sometimes it is difficult to tell a blatant lie. The rambling speech proves it.

I agree that the apology was not necessary for the bond. Instead it was aimed at the public. Contrary to O'Mara's contention, however, it is odd for a defendant to testify regarding a case at a bond hearing. The hearing is designed to assess the defendant's flight risk or danger to the public, not for him to make a plea to a victim or the media. The entire moment was unusual -- and self-serving and staged for the public.

Saturday, April 21, 2012

There is disturbing news from Newton County, Georgia today. According to several reports, Jean-Joseph and Angelica Kalonji were changing the locks on a home they purchased when two gun-wielding thugs confronted them. The father and son duo pointed their weapons at the Kalonjis and ordered them from their home.

Police arrived on the scene, and rather than arresting the neighbors for assault with a deadly weapon (at a minimum), they arrested the homeowners, charging them with loitering and prowling. Jean-Joseph Kalonji said that the terrible situation triggers awful memories from his life in the Congo: "There, they put me down with the gun to my head, and [after I] come here, the same. . . ." A spokesperson for the county sheriff's office said that authorities were "“looking into it, exactly what occurred, why it occurred."

Angelica Kalonji's Facebook page states that she is from Bucharest, Romania. Her husband Jean-Joseph is from Lubumbas, Katanga, Congo.

Friday, April 20, 2012

Today during his bail hearing, George Zimmerman issued an unwanted apology to Trayvon Martin's parents. Zimmerman said: "I did not know how old he was. I thought he was a little bit younger than I am, and I did not know if he was armed or not."

Zimmerman is essentially trying to elicit sympathy from the judge, potential jurors, the public and Martin's parents. Also, his lawyer is attempting to humanize him. If Zimmerman actually thought the 17-year-old Martin was an adult, then perhaps he had a reason to fear him.

But, is Zimmerman telling the truth?
Zimmerman is 28. Today he said he thought Martin was just a bit younger than he. But during a 911 call made moments before Martin's death, Zimmerman said he believed that Martin was in his late-teens. Thus, Zimmerman was pretty accurate about Martin's age. The audio tape of the 911 call appears below this post.

George Zimmerman is quite chatty. During his bail hearing, Zimmerman said that he is "sorry" for killing Trayvon Martin. He also said he did not know whether Martin possessed a weapon.

With respect to the apology -- Martin's family respectfully declined an earlier invitation to meet Zimmerman face-to-face for an apology. So, he took advantage of their presence at his bail hearing to make the apology. The judge required Zimmerman to post a $150,000 bond.

Zimmerman Potentially Weakened His Own Defense
Concerning Zimmerman's statement that he did not know whether Martin was armed -- this is a bizarre comment for a murder defendant to make. Under Florida law, a person can only use lethal force if he or she reasonably believes that the victim will cause serious bodily injury or use lethal force against the person. Zimmerman's statement that he did not know whether Trayvon carried a weapon goes against a reasonable fear of lethal force. A jury might find that it was unreasonable for Zimmerman to fear lethal force because he did not even know that the victim is armed.

Odd That He Is Still Talking
As a lawyer, I find it odd that Zimmerman continues to talk. Perhaps he is a difficult client. A few weeks ago, he called the prosecutor against the instruction of his attorneys. He also set up a personal webpage soliciting funds.

Zimmerman also made dozens of phone calls to the police prior to shooting Martin. He called primarily to report mundane matters. If Zimmerman's attorney has authorized his latest comments, then perhaps they want to commence plea negotiations. Also, the lawyer might have devised a strategy to sway the judge who has to determine whether the prosecutor has established sufficient probable cause to defeat Zimmerman's self-defense argument. Regardless, if the lawyer wishes to go to trial, he needs to muzzle his client.

Picture Shows Zimmerman Bleeding
Finally, several media released a picture that purportedly shows Zimmerman bleeding from two cuts on his head the night of Martin's death. If the picture is accurate, it would show that Zimmerman sustained an injury during the attack. The injury, however, does not appear very serious.

Furthermore, even if Zimmerman sustained an injury, this would not prove that he properly acted in self-defense. As the initial aggressor (which the facts seem to show), Zimmerman had the duty to retreat from the scene and to give up using violence.

Moreover, Zimmerman could only use lethal force to prevent serious bodily injury or the use of lethal force against him. Because Zimmerman followed and confronted Martin, Florida law allowed Martin to use force against Zimmerman. So, at this point in the case, it is not unreasonable to assume that Zimmerman was wounded because he attacked Martin.

Wednesday, April 18, 2012

Senator Mark Leno, a California legislator, has introduced a bill that would lower simple drug possession from a felony to a misdemeanor. Law enforcement officials, however, oppose the move.

California operates one of the largest prison systems in the world. The California prison population is above capacity, and the US Supreme Court recently upheld an injunction requiring the state to release inmates. Overcrowding in the system makes it impossible for inmates to receive necessary medical treatment.

Many of the offenders in California's system are nonviolent drug offenders. In fact, California led a 1980s "tough on crime" trend. States enacted tougher drug laws and 3-strikes legislation. They also ended or sharply curtailed the availability of parole. As a result of these measures, the US prison population has soared over the last 30. Today, the US has the largest percentage of incarcerated persons in the world. These persons are disproportionately poor, black and Latino. Such a massive deprivation of liberty is grossly inconsistent with purported American ideals of justice and equality.

Despite the pressing need to reverse mass incarceration, California law enforcement officials oppose the measure. They argue that it would prevent persons from getting drug treatment. But this reasoning is nonsensical. Courts could still mandate drug treatment even for misdemeanors. Also, the state currently offers drug treatment as an alternative to sentencing, but it has stopped funding this program.

Senator Leno has responded to these concerns by proposing that the state use money it saves by reducing the prison population to fund drug treatment. If law enforcement officials continue to oppose the measure, perhaps it is because they are too invested in the stream of income they derive from the current scheme.

According to his attorney, George Zimmerman wants to apologize to Trayvon Martin's family. ABC News has the full story. Here is an excerpt:

"Understand that George fully well realizes that he was involved in some way in the death of another young man," lawyer Mark O'Mara told ABC News.

"He does not take the result of that altercation lightly at all. That weighed on him, I would imagine, more than the isolation, more than the last six weeks, more probably than the threat of what is to come in the system," O'Mara said.

Zimmerman spent his first night in prison in protective custody, where he could be watched at all times. Law enforcement sources told ABC News, the 28 year old "wept quite a bit" at night.

O'Mara suggested that Zimmerman may apologize to Martin's family.

"What I want to happen is for that conversation to occur directly to the family rather than ...in the media through me,"

O'Mara said.
When asked if he thought Zimmerman would go through with an apology, O'Mara replied, "Yeah, I imagine it would." He did not know when that might happen.

If I were representing the Martin family, or if I were the prosecutor, I would enforce a no-contact rule. From a legal perspective, this is not the time for an apology -- unless, of course, you are representing Zimmerman.

ABC News also reports that Martin's family is at satisfied that Zimmerman has been arrested. They seem to understand the difficulty of proving guilt beyond a reasonable doubt. Their perspective, as described by ABC, appears cautious and wise.

Wednesday, April 11, 2012

It is becoming very fashionable for progressives to denounce Florida's Stand Your Ground rule and to describe it as a possible bar to a successful prosecution of George Zimmerman. As I have previously explained, there are numerous problems with this argument. First, it misstates the requirements of the Stand Your Ground rule. Second, it assumes that Trayvon Martin was the initial aggressor rather than George Zimmerman.

Despite the faults in the progressive critiques of Stand Your Ground, Think Progress has published a new blog entry which contends that Florida law gives individuals more leeway to use deadly force than members of the armed services. Jon Soltz, the founder and chairman of VoteVets.org, wrote the essay. Soltz argues that the

U.S. military issues Rules of Engagement (ROE) for every conflict to guide servicemembers’ ability to protect themselves from deadly threats while responding only with the necessary and proportionate level of force in a dangerous situation.

He then analyzes an ROE issued in 2007 during the Iraq invasion. The rule requires the use of "graduated force" when a servicemember faces a "hostile act" or "hostile intent." Soltz lists four steps in this graduated approach:

Soltz then describes an incident during which a US servicemember shot a fleeing detainee; the detainee died from the injury. The servicemember violated the ROE because the person he shot did not pose a risk, because he was fleeing and unarmed. The servicemember was charged for the violation (although he was later injured and never faced a court martial).

Soltz argues that by removing the "duty to retreat" prior to using force, Florida's Stand Your Ground rule lacks a requirement to deescalate; thus, Florida law allows for more immediate use of deadly force than the military. Furthermore, Soltz criticizes Florida law for (he claims) immunizing a suspect who uses deadly force simply "if he believe[s] he had been threatened with deadly force" or who merely claims "I thought someone was threatening."

Finally, Soltz expresses his dismay that Zimmerman has escaped an arrest by "simply claiming that he felt threatened by Trayvon, regardless of whether that was an objectively reasonable response to the situation or if he took steps to avoid a deadly confrontation." For several reasons, Soltz's analysis is absolutely wrong.

Soltz Misinterprets Florida Law
I assume that Soltz wrote his essay before the media reported that an arrest of Zimmerman seems imminent. Holding that aside, Soltz's essay misinterprets Florida law. Soltz correctly states that the Stand Your Ground eliminates the common law duty to retreat that is an element in most state self-defense laws. So, under Florida law, a person can generally use self-defense without trying to escape the threat.

The list of graduated factors that Sholtz provides, however, does not contain a duty to retreat either. Furthermore, despite the fact that Florida has eliminated the duty to retreat, Soltz incorrectly asserts that Florida law, unlike military regulations, allows for the use of force regardless of whether it is reasonably necessary. Contrary to Soltz's assertion that a defendant can avoid arrest by simply stating that he "believed" he faced lethal force or that he "thought" someone was threatening, Florida law requires that the person have a reasonable fear of harm. This means that the individual's subjective state of mind is not the baseline. Instead, a reasonable person under the circumstances must fear the threat. Accordingly, under Florida law, as in the military, a person who shoots a fleeing unarmed individual has likely committed a crime. It is difficult to argue that the assailant reasonably feared deadly force or serious bodily injury.

Second, Florida law requires that the use of force be proportionate to the harm. This rule applies in every state -- even those with Stand Your Ground provisions. Consequently, deadly force is only permissible under extremely limited circumstances -- either to avoid serious bodily injury or the application of lethal force by the victim. Thus, Florida law does not authorize a person to "shoot to kill" whenever he or she believes that lethal force is appropriate. Instead, the law provides parameters around the use of lethal force.

Soltz Assumes That Trayvon Martin Was The Initial Aggressor
Soltz's essay also misapplies Stand Your Ground to the developing facts of this case. Florida law clearly states that an initial aggressor has a duty to retreat. In other words, the individual who provoked the confrontation cannot take advantage of the Stand Your Ground rule. I have written extensively on this subject in prior blog posts (and have cited and quoted the relevant statutory language).

Admittedly, the evidence at this stage is very sketchy. But, it appears from 911 recordings that Zimmerman first followed Martin in his car. Zimmerman called 911 and said that Martin was "up to no good" and that he appeared to be "on drugs." Zimmerman also used profanity and possibly a racial epithet to describe Martin during the 911 call. Next, Zimmerman left his car and pursued Martin on foot with a loaded gun -- despite the dispatcher advising him not to do so.

Telephone records indicate that Martin was having a conversation with his girlfriend moments before his death, which suggests that he was not provoking Zimmerman into a confrontation. Indeed, Martin's girlfriend has said that he expressed to her that he was frightened and that Zimmerman was following him. She also said that Zimmerman approached Martin and shoved him. Under these facts, Zimmerman seems to have initiated the aggressive contact. Martin was simply walking home. Zimmerman was playing police officer and trying to prevent another "asshole" from "getting away."

If Zimmerman was the initial aggressor, he cannot claim a right to stand his ground. Instead, he should have tried to avoid the conflict by leaving if possible or by indicating to Martin that he meant no harm and that he did not want to continue the offense. Furthermore, if Zimmerman was in fact the initial aggressor, then Martin had the right to stand his ground and defend himself from Zimmerman. Thus, the fact that Zimmerman possibly sustained injuries inflicted by Martin does not excuse his decision to kill the teenager.

Soltz, like so many other progressive commentators, assumes that Martin -- the unarmed black teenager -- was the initial aggressor. These commentators either misunderstand Florida law or they cannot imagine Martin being the victim, rather than the aggressor. I would like to hear Soltz explain which of these factors led him to misapply the Stand Your Ground rule in this case.

Tuesday, April 10, 2012

I have always wondered how George Zimmerman's so-called legal team actually represented him when they had never met him. Although the insane New Black Panthers issued a bounty for his capture, it is doubtful that anyone took their offer seriously. Nevertheless, Zimmerman has been in hiding since the news that he shot and killed an unarmed teenager became a media sensation. Also, his "lawyers" have used this fact to explain why they have never met their alleged client.

Today, Zimmerman's lawyers held a press conference and announced that they were no longer representing him. They said that he had stopped returning their calls and that he was not following their advice. In a very bizarre twist, Zimmerman directly contacted the special prosecutor earlier this week. Ethical rules in every state prevent opposing counsel from speaking with represented adversaries without their counsel present. At this stage of the investigation, it is fair to say that Zimmerman is in an adversarial position with the state of Florida.

The prosecutor declined to speak with Zimmerman without his lawyers. Shockingly (or not), he said that the men who have presented themselves to the public as his lawyers were not actually representing him. Instead, he said that they were his "legal advisers." Well, that is what lawyers do when they provide representation: they give legal advice.

The situation on Zimmerman's side is unraveling. Yesterday, he launched a website seeking donations. As Think Progress reported, the website contains a picture of a vandalized black cultural center at Ohio State University. The graffiti supports Zimmerman's cause. Another picture shows a poster at a rally offering support for Zimmerman. The rally was sponsored by Terry Jones, a very conservative and openly bigoted anti-Muslim minister from Florida. This is not the public face a potential defendant in a hate crime case should present.

Furthermore, the same day Zimmerman launched his website, a "relative" wrote a bitter letter to Attorney General Eric Holder. The letter says that Holder is a racist because he has not charged the New Black Panthers with a federal hate crime. The only apparent reason for saying that Holder is a racist is the fact that he and the members of the New Black Panthers are black. Moreover, as I explained yesterday, the federal hate crimes statute punishes actual acts of violence on the basis of race or other protected categories. Accordingly, DOJ cannot charge the group with a hate crime.

The timing of the letter is very interesting. It coincides with Zimmerman's request for financial assistance. It also makes appeals to conservatives, after polls show that whites -- conservative whites in particular -- believe that he is innocent. I suspect that Zimmerman either wrote the letter himself or directed his "relative" to do so. No sane attorney would have advised a client to send such a letter or to distribute it to the media.

Yesterday, the special prosecutor announced that she was not going to use a grand jury to make a decision about any charges to bring against Zimmerman. I suspect that she will likely find probable cause to charge him with a crime, but it is impossible to make prediction with certainty. Regardless, Zimmerman has really damaged his reputation and is acting in a way that might deter good lawyers from representing him.

Monday, April 9, 2012

A member of George Zimmerman's family has unwittingly provided possible insight into the background of the man who gunned down Trayvon Martin, an unarmed black teenager. Today, the anonymous family member sent a letter to Attorney General Eric Holder that accuses him of being a racist. To support this claim, the letter argues that Holder is selectively enforcing federal hate crimes statutes. Although the Department of Justice is investigating whether Zimmerman committed a hate crime when he killed Martin, DOJ has not arrested the New Black Panthers, who offered a bounty for Zimmerman's life. For many reasons, the letter confirms my suspicions that despite Zimmerman's Hispanic ancestry, he likely grew up in an environment shaped by conservative racial prejudice and stereotyping.

So Many Problems, So Little Time

First, Zimmerman's relative distributed the letter exclusively to the Daily Caller -- a proudly rightwing blog that despises all things liberal. At the time of this blog posting, Fox News is the only major news outlet that has a scoop on the story. Thus, the family is definitely using rightwing sources to market its case.

Second, the letter itself makes some very bizarre claims, and it rests on very troubling notions about racial equality -- namely that protecting blacks from racial oppression is itself discrimination. The letter, for example, states that "many" people (a veiled effort to pass the buck to others) are saying that a "lynch mob" has formed against Zimmerman. I have always found the use of this term in this setting particularly odd. In US history, if a lynch mob was successful, the black man usually died. Well, that is exactly what happened in this case! Yet, Zimmerman's family member and many rightwing pundits still insist that he is the victim of a lynch mob.

And, of course, the lynchers are a long list of black people, including: "Congressmen (and women), the Congressional Black Caucus, The NAACP, Jesse Jackson, Al Sharpton, Spike Lee, President Barack Obama, and the most violent, The New Black Panthers" and "the black community." Two things come to mind after reading this list. First, people of many different racial backgrounds have expressed support for Martin's family. Also, a coalition of LGBT rights groups signed a joint proclamation demanding that Florida provide justice in this case. Also, the governor of Florida announced that the state police were taking over the investigation and that a special prosecutor would determine how to proceed with the case. Florida's governor and the special prosecutor are both white. Yet, Zimmerman's relative only singles out black folks and organizations for condemnation. This sounds like classic racial discrimination to me.

The letter also asks, "Whatever happened to INNOCENT UNTIL PROVEN GUILTY and DUE PROCESS," implying that Zimmerman has been deprived of these rights. This is ludicrous. Despite having killed an unarmed teenager, Zimmerman remains free. He has not been arrested. He has not been charged with a crime. Martin's family has not filed a civil suit against him. The federal government has not taken his passport. Zimmerman is a free man. Not only does he have a presumption of innocence, he is being treated as if he were actually innocent by both the federal government and the state of Florida. These same misguided arguments have appeared on many conservative media sites. Apparently, Zimmerman's relative is strongly influenced by rightwing media.

Perhaps the most bizarre statement in the letter is the assertion that DOJ's investigation will determine that Zimmerman's rights were violated. Although the letter does not state the culprit, it appears that the relative believes the New Black Panther party has violated federal law. For example, the letter asks Holder to explain "why, when the law of the land is crystal clear, is your office not arresting the New Black Panthers for hate crimes?" The letter suggest that Holder's racism prevents him from arresting the New Black Panthers. Interesting -- yes. Provocative -- absolutely. Right about the law -- not at all.

Federal Hate Crimes Law Not Implicated By The New Black Panther Actions

In 2009, Congress passed -- over intense conservative objection -- the Matthew Shepard and James Byrd Jr. Hate Crimes Prevention Act. The statute contains two broad sections. The first section authorizes the Attorney General, "at the request of a state, local, or tribal law enforcement agency," to "provide technical, forensic, prosecutorial, or any other form of assistance in the criminal investigation or prosecution" of hate crimes. The second part of the statute makes the commission of a hate crime a violation of federal law. The statute, however, clearly defines a hate crime -- which it must do in order to comply with the Constitution.

A person commits a federal hate crime if he or she

willfully causes bodily injury to any person or, through the use of fire, a firearm, a dangerous weapon, or an explosive or incendiary device, attempts to cause bodily injury to any person, because of the actual or perceived race [or] color . . . of any person (italics added).

While the behavior of the New Black Panthers is despicable, it does not constitute a hate crime under federal law because the group has not "caused bodily injury to any person." Also, while Zimmerman's actions fit at least a portion of the statutory requirements -- he caused bodily injury to Trayvon -- the federal government has not arrested him because it is unclear whether he acted out of racial motivation. Investigating whether he acted with racial motivation is not a determination that he has done so. Instead, DOJ is apparently giving Zimmerman the presumption of innocence that the rambling letter demands.

In order to support the baseless claim that the New Black Panthers have committed a federal hate crime, the letter does not cite the relevant federal law. Instead, it cites language from a 1996 document contained on a "Community Relations Service" page of the DOJ website. The document looks like an informal production. It is likely an archived link.

The document, which was written over a decade before the passage of the current federal hate crimes statute, suggests a much broader definition of hate crimes, to include acts of "intimidation" and "verbal threats." This document, however, does not purport to interpret any federal statute. Even if it does, it certainly does not interpret current law -- passed 13 years after the document was published. If Zimmerman's defense counsel approved this letter, then he should hire new lawyers -- immediately!

Arguing Reverse Discrimination for Financial Gain

Fittingly, the letter concludes with a very melodramatic claim. It analogizes Zimmerman's situation to the plight of Tom Robinson in To Kill A Mockingbird. Robinson, a black man, was convicted of raping a white woman despite a lack of evidence. It was a racist prosecution - consistent with a history of racism in the criminal justice system. Robinson was later murdered. Supposedly, Zimmerman is equally oppressed on account of race. Oppressed -- yet free.

Finally, the timing of this letter is very interesting. Today, Zimmerman created a webpage to solicit money for his defense. This letter -- which was released exclusively to a rightwing outlet -- seems targeted toward rallying opponents to civil rights who believe that a foreign-born, Muslim, socialist, communist, traitorous, racist black man is President of the United States. Judging from the hundreds of responses to the letter, it has reached its target audience. One wonders whether Zimmerman penned it himself.

Sunday, April 8, 2012

Conservatives have a sudden interest in "black-on-black crime." I place the term in quotes, because it is a peculiar term reserved for blacks. Although most violent crimes are "intraracial," only black-on-black crime is set aside for special analysis.

Despite all of the attention that academics, activists, and individual blacks have given this issue, conservatives have suddenly jumped on the wagon. But their interest is simply exploitative. They do not care about black-on-black crime. Instead, they wish to condemn people for focusing on the racial dimensions the Trayvon Martin's story. I have already written on this subject.

MY GOOGLE SEARCH
Although listening to the conservative bile might lead one to believe that no one has ever cared about black homicide victims, this is simply untrue. I just performed a Google search (at 10:35AM EST) for "black on black crime," limiting the results to stories that were published between January 1, 2000 and February 25, 2012 (the day before Martin was killed). Here are the results, as per Google: About 80,700 results (0.19 seconds). Ergo, the conservatives are simply wrong. Let's move on to an honest discussion of homicides and race.

A series of new polls indicate that blacks and whites have sharply different views regarding the Trayvon Martin killing. Although these polls focus only on racial perspectives regarding this particular case, they confirm previous long-running studies which show that race substantially impacts viewpoint.

According to a Gallup/USA Today poll, for example, 73 percent of blacks believe that George Zimmerman would have been arrested had Martin been white. Only 33 percent of whites share this belief. This statistic shows that whites and blacks hold greatly disparate views about fairness in the criminal justice system.

The Gallup/USA Today poll also reveals that most whites are not closely following this story. As Tommy Christopher of Mediaite observes, this is probably because they do not "have" to: "Their kids will never be Trayvon Martin. That’s just one of many things we’ll never truly understand about being black in America."

What Does Reality Tell Us?
While many commentators have chosen to end their analysis after merely stating the racial divide the polls reveal, it is important to look beyond these numbers. Many academic studies have shown that the race of the victim is one of the most important variables in arrests and sentencing for violent crimes. This research can help us compare racial perspectives regarding Trayvon's murder with the reality of race in the United States.

With respect to the death penalty, the famous Baldus Study of the Georgia death penalty shows that persons who kill whites are more than 4 times likely to receive a death sentence than persons who kill blacks. Despite this finding, the Supreme Court refused to invalidate a death sentence of a black defendant in the infamous case McCleskey v Kemp (see case for an analysis of the Baldus Study). Although five justices on the Supreme Court deliberately turned a blind eye to these harsh racial patterns, these findings have been replicated in other states with similar results. Furthermore, these same patterns exist with other types of sentences.

Studies also show that whites tend to rate behavior by blacks as aggressive and the same behavior among whites as nonaggressive. This is especially true when the "victim" is white. These biases typically exist at the nonconscious level; accordingly, they can impact persons who do not openly embrace racial prejudice (for a more extensive discussion of this topic, see here).

What Explains the Different Views?
If so many studies demonstrate the relevance of the victim's race in sentencing and perception of aggressiveness by the defendant, why are blacks and whites sharply divided on this subject? Sociologists and psychologists would likely attribute these disparities to "system justification." System justification theorists posit that people have a natural impulse to justify the existing social order. As a result, many whites often rush to deny the existence of racism. Instead, they blame persistent patterns of racial inequality on factors other than race -- such as laziness or wrongdoing among persons of color.

Many persons of color will also try to justify the status quo. System justification can explain the impulse by persons of color to assert that racism no longer exists and that persons of color are alone responsible for their own plight. Shelby Steele's recent rant against civil rights activists makes both of these unjustifiable claims.

What To Do?
Because many whites are not paying attention to the Martin case, it is difficult to predict whether this case will become a "teaching moment" about the ongoing significance of race. But such a conversation needs to occur. The observation that racism exists is not inherently insulting to or accusatory of whites. Whites need to stop taking these things personally. Racism is a social problem -- not a white problem. Similarly, racial inequality is a social problem -- not a failing among persons of color.

Whites should also seek to remove the phrase "playing the race card" from their vocabulary. When whites accuse persons of color of playing the race card, they are doing so themselves. The oldest race card is the contention that racism does not exist. When whites accuse blacks of "making things about race," they are basically stating the predominately white perspective that racism is nonexistent. That is a denial of reality.

To the extent that persons of color use race to demonize individual whites (or all whites), this is unhelpful behavior. Focusing more on institutional bias or implicit bias is more useful during an era in which racism exists more often at the nonconscious level.

For that reason, Zimmerman's racial background is not entirely relevant. The governmental response -- which is an institutional policy decision -- is much more important for blacks in the longterm. Activists who are responding to this case should explicitly make the distinction between Zimmerman and institutional racism among law enforcement and prosecutors in Florida.

Thursday, April 5, 2012

The race-apologists are exploiting an opportunity to preach their tired message that civil rights advocacy is "redundant" and that the United States is post-racist. The only racism today, according to their baseless claims, exists among trouble-makers who continue spewing racial hatred, i.e., criticizing racial injustice, rather than condemning persons of color for their own pathology.

Unfortunately, the death of Trayvon Martin gives this shamelessly opportunistic -- and equally wrongheaded -- lot the chance to deliver its troubling sociological sermon to the American public. To my knowledge, neither advocate has substantial training in sociology or the history of race relations. If they do, they blatantly ignore the prevailing sociological literature on the impact of race and poverty on poor blacks. Why let facts get in the way of an agenda.

Since Martin's death, several of these post-racism activists, have preached a singular message. The latest offering comes from Shelby Steele, who recently published a tirade against civil rights advocates in the Wall Street Journal. It almost seems as if these critics are copying and paraphrasing each other. The themes they analyze are that repetitive: "Black people" should not pay so much attention to Martin's death. Most black men are killed by other black men. Black people are only paying attention to this case in order to promote the lie that racism is still pervasive in the United States.

By referring to "black people," they actually mean just two persons: Jesse Jackson and Al Sharpton. Even though Martin's parents (and thousands of others) have participated in rallies and have stated that they believe race played a factor in their son's death, the anti-civil rights critics know that their arguments would probably cause a lot of problems if they focused on Martin's parents. So, they bury that inconsistency and continue marching.

These articles serve one singular purpose: To make a case that racism no longer exists. Shelby Steele has been making this same argument for decades -- yet he offers no additional nuance than when he first approached the subject.

Curiously, Juan Williams has joined Steele in damning civil rights advocacy -- even though Freudian impulses recently got the best of him when he admitted his fear of folks who dress in Muslim attire. He admitted to embracing explicit bias, but now he wants to silence critics of racism.

Racism and the Trayvon Martin Case

There are many ways in which racism could have contributed to Martin's death. First, racial biases could have influenced his killer -- George Zimmerman. An enhanced recording of Zimmerman's 911 call suggests that he used the words "fucking coon" prior to killing Martin. This is an obvious racial epithet. Zimmerman also could have viewed Martin as "up to no good" and "on drugs" due to racist and gendered stereotypes about black men.

Contrary to Steele's assertion, the fact that Zimmerman has a Latina mother, does not alter the operation of racism. First, Latinos did not create white supremacy and racial stereotypes in the United States. These problems were constructed by private and governmental decisions set in motion by whites hundreds of years ago. That a Latino male is impacted by US cultural racism is not shocking. It is simply a reflection of the pervasiveness of racism -- something Steele denies.

Race could have also impacted the decision by Sanford police and the prosecutor not to bring charges against Zimmerman. There are similar cases in the history of this same police department that suggest a pattern of racial motivation. That DOJ is investigating the entire department could provide justice to the folks who live in Sanford.

Racism and "Black on Black Crime"

The fact that most black men are killed by other black men does not prove that racism does not exist in society or in the Martin case. First, the concept of "black on black" crime itself is peculiar terminology. Most violent crimes are intraracial. Yet, it is not common to discuss or analyze "white on white," "Latino on Latino" or "Asian on Asian" crimes. Instead, black criminality is singled out for analysis. That alone raises the possibility of racial stereotyping -- especially among folks like Steele who raise this topic in order to silence civil rights activists.

Contrary to Steele's assertions, civil rights activists, including Jesse Jackson and Al Sharpton have protested and demanded remedies for "black on black crime." Nonetheless, most black men do not become homicide victims. Instead, blacks who are at high risk of homicide are the most vulnerable among the population. They are poor. They live in areas of concentrated poverty (i.e., all of their neighbors are poor). Their neighborhoods lack jobs. They attended racially concentrated poverty schools, which fail miserably in every statistic that measures academic performance. Lacking realistic opportunities for subsistence, many of them turn to criminality. And the US responds by constructing more prisons rather than addressing the legacy of racism and class oppression that makes equal opportunity a myth.

The most perverse aspect of Steele's (and others') arguments is that he would oppose measures designed to eradicate the structural inequities that lead to violence among poor black males. His deceitful post-racism argument legitimizes the beliefs of individuals who turn a blind eye to the plight of poor persons in every racial group. For these reasons, Steele's discussion of homicides among blacks does not come from a place of sympathy. Instead, he is simply exploiting the death of black males, including Trayvon Martin, in order to deny the existence of racism. This is one of the most abhorrent forms of racial exploitation one could imagine.

Note from the author: My concern for black homicide victims pre-dates Martin's death. On the left panel of this blog, there are links to a series of articles I have written called: "Every Murder Victim Has A Story." The purpose of the series is to cover the deaths of young persons of color who do not receive media attention (see, e.g., this story). Steele's so-called concern for black homicide victims is sudden and exploitative.

Wednesday, April 4, 2012

Conservatives have blasted President Obama's argument that the Supreme Court should not invalidate the Affordable Care Act. Some of the conservative blog commentary is absolutely despicable -- describing Obama a "buffoon," among other degrading terms. These arguments are also ahistorical.

Presidents have criticized and disagreed with the Court throughout history. In the recent past, the Court's ruling in Lawrence v. Texas angered conservatives. Lawrence invalidated a Texas law that banned sexual conduct between individuals of the same sex. In response, conservatives blasted the decision, and President Bush proposed a constitutional amendment banning same-sex marriage.

FDR probably has the most noted history of judicial conflict. He repeatedly condemned the Court after it threatened the New Deal legislation. Roosevelt also proposed a "court-packing" plan that would have allowed him to stack the bench with justices who shared his views regarding the Commerce Clause.

But Thomas Jefferson probably holds the record for the most outlandish interference with the Supreme Court. Jefferson and the Democratic-Republicans proposed and passed legislation that shut down the Court for a two-year period. The Jeffersonian Congress wanted to prevent the Court from reviewing its decision to repeal legislation implemented by the lame-duck Federalists.

Jefferson also had very harsh words for the concept of judicial review. Jefferson said that allowing the Court to have the final say on the meaning of the Constitution would "place us under the despotism of an oligarchy" (p.4). Furthermore, Jefferson rejected a Court-ordered subpoena to testify at the treason trial of Aaron Burr, arguing that the Court could not exercise authority over the President. Jefferson also asked Congress to initiate impeachment proceedings against Justice Samuel Chase, who disagreed with Jefferson on policy related to the federal judiciary.

Because of his animosity towards the Court, conservatives often cite to Jefferson to support their own opposition to judicial review. Newt Gingrich, for example, recently invoked Jefferson's legacy in order to justify his proposal to eliminate the Court's autonomy.

Today, however, conservatives are angry because Obama has simply encouraged the Court not to invalidate legislation. Compared with a history of presidential criticism of and interference with the Court, Obama's comments are pretty innocuous. But in today's political climate, facts are trivial, and hypocrisy rules.

Conservatives have responded loudly and hypocritically to President Obama's concern that a judicially activist Supreme Court will invalidate the Affordable Care Act. Although conservatives have a long history of court-bashing, they are responding to Obama's comments with rage.

For example, the conservative editors of the Wall Street Journalhave asserted that Obama rejects the concept of judicial review. In other words, the Wall Street Journal editors contend that Obama does not believe that federal judges can invalidate federal statutes. This, of course, is not what Obama said.

At least one conservative judge has proved that Obama's concern for conservative judicial activism is meritorious. Yesterday, during a hearing in the United States Court of Appeals for the Fifth Circuit, Judge Jerry Smith, a conservative judge (in a very conservative circuit), demanded that DOJ lawyers state by tomorrow whether Obama believes in judicial review. In other words, Judge Smith advanced the distorted rightwing depiction of Obama's comments in open court!

It is bad enough for a judge to raise a deceptive argument in court, but it is even worse for a judge to raise a deceptive argument that is being made in an open partisan political debate. Judge Smith has placed himself on the conservative side of an ongoing political debate. By doing so, he has validated Obama's concerns regarding politically biased judges. By the way, the court was actually reviewing a separate challenge to a part of the Affordable Care Act. I wonder which way it will rule (not really).

Tuesday, April 3, 2012

According to MTV, Burger King has pulled a commercial advertising a new fried chicken wrap after participants in an online uproar said that the commercial reflected racial stereotypes. Singer Mary J. Blige is featured in the commercial singing about the sandwich to the tune of one of her hip-hop-inspired songs.

Although I am a defiant race critic, this commercial is not worthy of the hoopla. There were many whites in the commercial. Blige is a popular singer. And black people certainly consume fast food, including chicken. Furthermore, other black stars, such as Ella Fitzgerald and LaWanda Page have appeared in advertisements for fried chicken in the past.

Honestly, I find it a bit ironic that people are only worried about Blige selling fried chicken -- rather than fast food generally -- to blacks. The pulled commercial appears below this post. Do you think that it is racially insensitive?

Update:Gawker now reports that the commercial was pulled due to a licensing dispute. Burger King says that it will reappear soon.

A funny thing is happening in the land. Conservatives are running around touting the virtues of judicial review. The Editors of the Wall Street Journal, for example, have published an editorial that urges President Obama to respect Marbury v. Madison -- a landmark Supreme Court decision that establishes the concept of judicial review.

Many conservatives have argued that judicial review is an illegal concept created by lawless and unelected justices of the Supreme Court. This argument, in fact, was a standard assertion among Southern conservatives who mobilized to resist the Court's ruling in Brown v. Board of Education of Topeka, Kansas.

Furthermore, several conservative politicians have recently embraced policies that would nullify the concept of judicial review, if implemented. Newt Gingrich, Rick Perry and Ron Paul have all proposed measures that would radically alter the Court's judicial review powers and that give Congress the authority to disregard Court rulings. Today, however, conservatives applaud judicial review as a safeguard for individual liberty and a check against the central government.

Why the sudden shift? Last week, the conservative bloc on the Supreme Court appeared ready to invalidate the Affordable Care Act -- even if it meant departing from recent precedent. Justice Scalia, whose questioning of government counsel was particularly harsh, authored a very liberal opinion regarding the government's ability to regulate commerce in Gonzales v. Raich. In that ruling, the Court upheld federal authority to criminalize the use of homegrown marijuana for medical purposes -- even though it was clearly not purchased on the open market, or "in commerce." Now, Scalia, displaying an utter lack of concern for his own prior opinion, seems prepared to nullify a comprehensive regulation of health and insurance markets -- clearly items of interstate commerce (see this post for a discussion of the ACA and the Constitution).

President Obama has recently criticized the oral arguments, arguing that the Court should not invalidate the ACA. Obama's critique employs conservative language to oppose judicial activism and to discuss the "danger" of an unelected tribunal invalidating legislation or second-guessing Congress. Liberals have opposed this set of arguments in the past, particularly with respect to fundamental rights and equal protection. But the commerce power is specifically delegated to Congress, and Congress has greater expertise than judges regarding the policies needed to protect interstate commerce.

Despite the usual show of deference to Congress on economic policy, the five conservatives seemingly presume that the ACA violates the Constitution. Rather than requiring the plaintiffs to prove that the insurance mandate is not rationally related to commerce, the conservatives apparently believe the government should meet this burden instead. This is not judicial deference. It is judicial overreach.

Although conservatives have made alarmist claims of judicial activism in the past, today, they say that Obama should respect the system of judicial review. Yes, a funny thing is happening in the land. It is called "hypocrisy."

UPDATE: The conservative hypocrisy has extended to the United States Court of Appeals for the Fifth Circuit. During a hearing yesterday, a conservative judge demanded that DOJ lawyers say whether Obama believes that federal judges have the authority to invalidate federal statutes. Obama never said that they did not. But the Wall Street Journal and other conservative sources have deceitfully argued that he did).

Monday, April 2, 2012

George Zimmerman killed Trayvon Martin on February 26. Despite numerous protests and leaks of damning evidence, Zimmerman remains at large, and the state of Florida has not brought charges against him. Several developments in this situation occurred today, however.

ABC News Enhances Video of Zimmerman at Police Station

Last week ABC News released video footage of Zimmerman entering the Sanford police station in handcuffs. In the video, Zimmerman does not appear to have any significant injuries. Today, ABC released an enhanced version of the video that seems to show a possible injury on the back of his head.

Still, the injury does not seem severe, and EMS workers did not dispatch an ambulance for Zimmerman after the shooting. Furthermore, the injury could have occurred as Martin lawfully defended himself from Zimmerman's aggressive stalking and pursuit.

Doctor Says Zimmerman Does Not Seem to Have Broken Nose or Head Injuries in Video

ABC has played the enhanced video for Dr. Vidor Friedman, the President of the Florida College of Emergency Physicians. Although ABC says that the new video seems to show that Zimmerman sustained a head injury, Friedman doubts the conclusion. According to Friedman, "If somebody had been beating his head against concrete I'd think we'd see more obvious scrapes. . . ." In addition, Friedman said that he would expect to see bandages on Zimmerman's head.

Friedman also contested Zimmerman's claim that he sustained a broken nose during a scuffle with Martin. According to Friedman, "All of the ridges in his nose are clearly defined. You would expect significant swelling in the hour or two after a break. There appears to be none. It doesn't look like his nose was broken or badly broken. . . ."

FBI Investigating Facts Surrounding Martin's Death

The FBI has launched a "parallel" investigation into the facts surrounding Martin's death. The FBI has begun interviewing witnesses and analyzing 911 calls in order to determine whether Zimmerman violated any of Martin's civil rights.

LGBT Rights Groups Issue Joint Statement Regarding Martin's Death

Today, a coalition of 28 LGBT rights organizations released a joint statement regarding Martin's death. Here is an excerpt from the statement:

Trayvon’s killing is tragic and the stark reality that racial bias played a role in his death has alarmed our nation. Questions must be asked. Answers must be sought. And justice must be served. We join our voices to the chorus of so many others to demand that local and federal authorities find those answers. We stand in solidarity with Trayvon’s family and friends as they seek justice for his killing. In the timeless words of Dr. Martin Luther King Jr., injustice anywhere is a threat to justice everywhere.

Two Voice Experts Say That Martin -- Not Zimmerman -- Is Screaming on 911 Tapes

The Orlando Sentinel has interviewed two forensic voice experts. Both experts have listened to 911 recordings that capture gunshots and screams the night of Martin's death. The experts conclude that Martin is screaming in the background of the 911 calls.

The experts' findings contradict Zimmerman's statement through his attorney that he was calling for help rather than Martin. If the experts' conclusions are correct, then their finding would severely undermine Zimmerman's self-defense argument.

If Zimmerman was the initial aggressor -- and evidence stronglysuggests that he was -- then he had a duty to retreat under Florida law. Martin's screams for assistance suggest that he (not Zimmerman) feared for his life. Rather than retreating from the scene, Zimmerman stayed and killed Martin, who was pleading for his life. If this sequence of events took place, then prosecutors should charge Zimmerman with murder

About Me and the Blog

Professor Darren Hutchinson teaches Constitutional Law, Remedies, Race and the Law, and a Civil Rights Seminar at the University of Florida Levin College of Law. Professor Hutchinson also holds the prestigious Stephen C. O’Connell Chair.
Professor Hutchinson received a B.A. from the University of Pennsylvania and a J.D. from Yale Law School. Before teaching law, Professor Hutchinson practiced commercial litigation at Cleary, Gottlieb, Steen and Hamilton in New York City. He also clerked for the late Honorable Mary Johnson Lowe, a former United States District Judge in the Southern District of New York.
Professor Hutchinson's research has appeared in many prestigious journals including the Cornell Law Review, Washington University Law Review, UCLA Law Review, University of Michigan Journal of Race and Law, and University of Pennsylvania Journal of Constitutional Law.
He has also presented his research at numerous universities, including Yale, Stanford, Columbia, University of Pennsylvania, University of Michigan, University of California at Berkeley, University of Virginia, Cornell, Georgetown, and Boston University.

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